An application for a writ of certiorari against DR WALLY KNEZEVIC, DR CHRISTOPHER HAMMERSLEY and DR KATRINA MARSHALL as members of a medical assessment panel constituted under the Workers' Compensation and Rehabilitation Act 1981

Workers' Compensation and Rehabilitation Act 1981 - Application for stay pending return of order nisi - Jurisdiction to order stay - Privative clauses to be strictly construed - Meaning of "restrain" in subs 84ZN(1) - General meaning of "restrain" - Proceedings before review officer not to be restrained

Workers' Compensation and Rehabilitation Act 1981, s 84ZN

Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 58; (1986) 161 CLR 148

Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

Harper v Racing Penalties Appeal Tribunal & Anor, unreported; SCt of WA; Library No 930738; 26 November 1993

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681

Re The Medical Board of Western Australia; Ex parte P [2001] WASC 103

Stampalia v The Stewards of West Australian Trotting Association & Anor [1999] WASC 7

Summit Homes v Luvec [1996] 16 WAR 556

1 LE MIERE J: On or about 18 September 2000, the plaintiff was involved in an accident at work in the course of her employment. She says she was employed by Robe River Mining Co Pty Ltd. A notice of intention to be heard in these proceedings has been filed on behalf of Nippon Steel Australia Pty Ltd, Sumitomo Metal Australia Pty Ltd, Robe River Mining Co Pty Ltd, Mitsui Iron Ore Development Pty Ltd, and North Mining Ltd trading as Robe River Iron Associates. The notice of intention to be heard describes those companies as the applicant's employer. I will refer to the applicant's employer as Robe River. On or about 31 October 2001 the applicant was involved in another accident at work. The applicant was unfit for work of any kind and commenced to receive weekly payments of compensation on or about 8 January 2001. The payments were made by the employer's insurer, Insurance Australia Ltd trading as CGU Workers Compensation. The applicant remains in receipt of weekly payments.

2 Disputes arose between the applicant and her employer as to her degree of disability. These disputes were referred to the Director of Conciliation and Review under s 93D(5) of the Workers Compensation and Rehabilitation Act 1981 (the Act) in April 2002 and January 2003. There are four disputes currently before a review officer, namely:

(a) AP230/02 seeking a determination of a degree of disability of not less than 16 per cent in respect of the second accident only;

(b) AP368/02 seeking a determination of a degree of disability of not less than 30 per cent in respect of both the first and second accidents;

(c) AP042/03 seeking a determination of a degree of disability of not less than 30 per cent in respect of the first accident only;

(d) AP041/03 seeking a determination of a degree of disability of not less than 30 per cent in respect of the second accident.

3 At a conciliation conference held on or about 6 November 2004, a conciliation officer informed CGU and the applicant that he would refer questions to a medical assessment panel for determination. The referral was made some time before 5 January 2004.

4 The medical assessment panel constituted pursuant to s 145C of the Act to determine the questions referred to it concluded its determination on 19 January 2004. The applicant was in attendance at the meeting of the medical assessment panel. The panel put questions to her and carried out a medical examination. On 22 January 2004, the medical assessment panel delivered its determination. The panel determined in substance as follows:

(a) The panel did not consider that the applicant had any evidence of physical disability.

(b) There was no evidence of a major depressive disorder and no evidence of any psychiatric disability.

(c) The applicant has the capacity to undertake full pre-accident duties as a Haulpak driver. The panel considered that no restriction needs to be placed upon her.

(d) The panel considered that the applicant had the capacity to undertake alternative duties on a full-time, unrestricted basis.

(e) The applicant does have the capacity to undertake pre-accident duties as a Haulpak driver on a full-time, unrestricted basis. No restrictions need or should be placed upon her from a psychiatric point of view.

(f) The worker has the capacity to undertake duties on a full-time, unrestricted basis without any restrictions placed upon her.

5 The applicant applied by originating motion for an order nisi calling on the conciliation officer to show cause why the referral to the medical assessment panel should not be quashed on the ground that he had no jurisdiction to refer the questions to the panel. The plaintiff also sought an order nisi calling on the medical assessment panel to show cause why their determination should not be quashed on the ground that the conciliation officer had no jurisdiction to refer the questions to the panel and on the following addition grounds:

(a) The panel made non-medical findings of fact and thereby exceeded its jurisdiction.

(b) Alternatively, the panel made the said non-medical findings of fact without giving the applicant an opportunity to be heard in relation thereto and thereby denied the applicant procedural fairness.

(c) The panel took into account irrelevant considerations, namely the surveillance video of the applicant, and thereby exceeded its jurisdiction.

(d) Alternatively, the panel relied on the said video without informing the applicant that they had done so or would do so and without giving the applicant an opportunity to be heard in relation to the said video, and thereby denied the applicant procedural fairness.

(e) Alternatively, the panel erred in law in failing to give adequate reasons for its determination as required by s 145E(3) of the Act and in accordance with the requirements of natural justice.

6 On 11 March 2004 I granted an order nisi in the terms sought by the applicant.

7 In her originating motion, the applicant also seeks a stay order. On 11 March, on the motion of the applicant, I amended the originating motion to seek a stay in these terms: "Until further order, the application by CGU to review the applicant's wages, dated 7 October 2003, be stayed." I then adjourned the stay application to a special appointment.

8 On 18 March 2004 I heard the applicant's application for a stay order. On the applicant's motion I further amended the originating motion to seek a stay in these terms: "Until further order, the application by CGU to review the applicant's wages, dated 7 October 2003, and the proceedings before the review officer, namely AP230/02, AP368/02, AP042/03 and AP041/03, be stayed."

9 I have been informed by counsel for the applicant that an application to the review officer to review the applicant's weekly wages will be heard on 23 March 2004.

10 Robe River and Insurance Australia Ltd submit that this Court does not have jurisdiction or power to grant the stay order sought.

"(1) Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court.

(2) A party to the proceedings who is dissatisfied with a decision or order of the review officer may, where a question of law is involved, appeal to a compensation magistrate's court against the decision or order."

13 The operation of a State privative clause is purely a matter of its proper meaning ascertained in its legislative context. However, privative clauses whether in State or Commonwealth legislation are construed "by reference to a presumption that the legislature does not intend to deprive the citizen of access to the Courts other than to the extent expressly stated or necessarily to be implied": Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, per Gaudron and Gummow JJ, at 633.

14 In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 at [72], Gaudron, McHugh, Gummow, Kirby and Hayne JJ, said:

"The second basic rule, which applies to privative clauses generally, is that it is presumed that the parliament does not intend to cut down the jurisdiction of the Courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed."

15 Counsel for the applicant submits that in subs 84ZN(1) of the Act "restrain" means permanently restrain. Counsel says that subs 84ZN(2) of the Act creates a right of appeal to a Compensation Magistrate's Court against a decision or order of a review officer. Counsel says that the purpose of subs 84ZN(1) is to prevent a decision or order of a review officer being reviewed in any Court. Counsel further says that the second limb of subs 84ZN(1), that is "proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any Court or by removal by certiorari or otherwise in any Court", is to ensure that a review officer is not permanently prevented from making a decision or order.

17 In S157/2002, Gaudron, McHugh, Gummow, Kirby and Hayne JJ repeated the statement by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384 [78]:

"The duty of a Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have."

18 The scheme for dispute resolution is found in Part IIIA, Division 3 of the Act. Disputes are dealt with at a review by a review officer who is required to act fairly, economically, informally and quickly in resolving the dispute whether by bringing the parties to agreement or otherwise: s 84ZA(2). The review officer is to act according to the substantial merits of the case without regard to technicalities or legal forms or precedents: s 84ZA(3). The rules of evidence do not apply to a review: s 84ZD. Legal representation at any proceeding is not a right: s 84ZE. There is only an appeal from a decision or order of a review officer to a Compensation Magistrate's court on a question of law: s 84ZN(2). As Owen J said in McNair v Press Offshore Ltd (1997) 17 WAR 191 at 198:

"One of the purposes of the Act is to make provision for the hearing and determination by the dispute resolution bodies (which term includes a review officer) of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick: see s 3(d). It would be inimical to that aim if the parties to the dispute were at liberty to pursue claims in multiple jurisdictions depending on the outcome from time to time. Under s 84ZN, a decision or order of a review officer is not open to question or review in any Court and proceedings before a review officer may not be restrained by injunction nor may they be challenged by prerogative writ. There is an avenue of appeal, namely to a Compensation Magistrate, but this is limited to error of law."

19 The ordinary meaning of restrain is "to hold back from action". To stay the proceedings before a review officer is to hold back the review officer from the proceedings, whether permanently or otherwise.

20 In Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253, Anderson J at [40] described s 84ZN(1) as a "strongly-worded privative clause". In my view, it would be a strained and unnatural reading of subs 84ZN(1) to read "restrained" as confined to permanently restrained and not extending to a stay pending the return of the applicant's order nisi for prerogative relief. Furthermore, it seems to me that the dispute resolution scheme in Part III, Division 3 and the apparent purpose of subs 84ZN(1) do not support the interpretation of subs 84ZN(1) advocated by the applicant.

21 Subsection 84ZN(1) says that proceedings by or before a review officer may not be restrained by injunction, prohibition or other process or proceedings in any Court or by removal by certiorari or otherwise in any Court. In my view, the application by the plaintiff for a stay of the application to review the applicant's wages and to review the applicant's degree of disability is an application to restrain proceedings by or before a review officer by process or proceedings in this Court.

22 As I have come to the view that the Court does not have power to stay the proceedings before the review officer, it is neither necessary not desirable for me to consider whether I would have exercised the discretion to order a stay if I have power to do so. It is not desirable because the applicant is likely to apply to the review officer to stay or adjourn the proceedings before the review officer.

23 For the reasons stated, I dismiss the applicant's application that the application by CGU to review the applicant's wages, dated 7 October 2003, and the proceedings before the review officer, namely AP230/02, AP368/02, AP042/03 and AP041/03, be stayed.